At the outset, we note that defendant's major premise is a narrow one. He
does not assert that the criterion that ORS 137.540(2) expressly establishes--that is, that
any special condition of probation be reasonably related to his crime of conviction or his
particular needs for public protection or reformation--must be determined by a jury. Nor
does he assert that the record in this case was insufficient to satisfy that criterion.
Instead, he argues that our holding in State v. Mack, 156 Or App 423, 967 P2d 516
(1998), requires a sentencing court to find, as a predicate for imposing a sex offender
package as a special condition of probation, that, in committing the offense, the defendant
acted with a sexual purpose. Defendant is mistaken.

At issue in Mack was whether the evidentiary record was sufficient to
support the imposition of a sex offender probation package where the defendant was not
convicted of a sex offense. We held that, although the court had discretion to impose
special conditions of probation, the record must support the imposition of any such
conditions. Id. at 427-28. We further held that, because the defendant was not convicted
of a sex offense, "there must be some evidence from which a reasonable inference arises
that [the defendant] acted with a sexual purpose." Id. at 429. We also stated:

"Thus, the trial court had to find that defendant acted with a sexual purpose
before it could impose a sex offender package as a condition of probation in
this case. Otherwise, the imposition of the sex offender package as a
condition of probation would not be reasonably related to the crimes of
conviction."

Id. (2) Because the record in that case did not establish that the defendant had acted
with a sexual purpose, we remanded the case for resentencing. Id. at 429.

Contrary to defendant's understanding, Mack does not require, as a
foundation for imposing a sex offender probation package as a special condition of
probation, a particularized finding of fact that the defendant acted with a sexual purpose.
To be sure, where the state asserts that the sex offender package is reasonably related to
the defendant's crime or conviction, "there must be some evidence in the trial record from
which one could reasonably infer that the defendant acted with a sexual purpose." State
v. Phillips, 206 Or App 90, 98, 135 P3d 461, rev den, 341 Or 548 (2006) (emphasis
added). However, our statement in Mack that the sentencing court "had to find that
defendant acted with a sexual purpose," must be read with an eye toward the text of ORS
137.540(2) and other decisions construing it. 156 Or App at 429 (emphasis added). By
its terms, the statute requires a defendant's offense or his or her needs for reformation or
protection of the public to be "reasonably related" to any special probationary conditions
that the sentencing court imposes. The statutory text does not refer, either expressly or by
implication, to a findings requirement.

This court and the Supreme Court have interpreted the statute in a
straightforward way. We have said that, in making the statutory determination, it is "not
necessary * * * for the court to list the reasons why it found the special condition
appropriate." Estey, 121 Or App at 253 (emphasis added). That is so because the
evidentiary record permits an "appellate court [to] test the [special condition of probation]
for compliance with ORS 137.540(2)." Id. In Martin, the court explained:

"An appellate court can test conditions of probation for compliance
with [the legislative] standard only if the sentencing court makes a record.
Such a record need not be exhaustive, and often the facts brought out in the
criminal trial will themselves be an adequate record to show that the
conditions of probation are appropriate."

Thus, when properly understood, our statement and, indeed, our holding in
Mack, refer to the need for evidence of a reasonable relationship between a sex offender
probation package and the purpose underlying the defendant's offense. Mack does not
undercut the longstanding holdings of Estey and Martin that the evidentiary record, not
particular findings of fact, must support the imposition of special conditions of probation.
In short, there is nothing in the text of ORS 137.540(2) or the case law construing it that
requires particularized factual findings to justify the imposition of any special condition
of probation, including a sex offender package for a defendant convicted of a nonsex
offense.

1. ORS 137.540(2) provides, in part, that, "[i]n addition to the general conditions,
the court may impose any special conditions of probation that are reasonably related to the crime
of conviction or the needs of the probationer for the protection of the public or reformation of the
probationer, or both * * *."